Cassarino v Cassarino [2020] NSWSC 454

Supreme Court New South Wales

Medium Neutral Citation: Cassarino v Cassarino [2020] NSWSC 454 Hearing dates: Dealt with in Chambers and on the papers Date of orders: 28 April 2020 Decision date: 28 April 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court:

1. Orders subject to compliance with the Probate rules of Court that Probate in solemn form of the Will dated 19 January 2015 of Francesco Cassarino ("the deceased") be granted to the Defendants/Cross-Claimants, Vincent Cassarino (a.k.a. Vince Cassarino), Tony Cassarino, Connie Russo and to the Plaintiff, Francesca Cassarino.

2. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

3. Orders that the administration bond be dispensed with.

4. Orders that the Statement of Claim, filed on 15 November 2018, be dismissed.

5. Orders that the Cross-Claim, filed on 1 July 2019, otherwise be dismissed.

6. Makes no order as to the costs of any party, to the intent that she, and they, will bear her, and their, own costs, respectively, of the proceedings.

7. Agreements of the parties noted. Catchwords: SUCCESSION – Probate and administration – Entitlement to grant of Probate – Contested proceedings – Where parties reach agreement to pass over a later Will in favour of grant in solemn form of an earlier Will – Where there was some doubt as to the validity of the later Will – Grant of Probate a public act – Orders not to be made as a matter of course – Whether, and in what circumstances, the Court will make a grant of Probate based on the agreement of the parties Cases Cited: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Fairclough v Cvitan [2019] WASC 370 Philpott v Olney [2004] NSWSC 592 Public Trustee v Gerritsen [2012] WASC 201 Smith v Smith, Estate of Smith [2007] NSWSC 116 The Estate of Clarence Gilbert Alcorn (Supreme Court (NSW), Powell J, 9 August 1991, unrep) Tolson v Hender [2009] WASC 319 Vandeleur v Franich [1991] 1 Qd R 481 Category: Principal judgment Parties: Francesca Cassarino (Plaintiff/Cross-Defendant) Vincent Cassarino (First Defendant/First Cross-Claimant) Tony Cassarino (Second Defendant/Second Cross-Claimant) Connie Russo (Third Defendant/Third Cross-Claimant) Representation: Solicitors: Agostino & Co (Plaintiff/Cross-Defendant) Simone Legal (Defendants/Cross-Claimants) File Number(s): 2018/00257946